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[No. 14335. January 28, 1920.]

MANUEL DE GUIA, plaintiff and appellant, vs. THE

MANILA ELECTIC RAILROAD & LIGHT COMPANY,
defendant and appellant.

1. CONTRACTS; NEGLIGENT PERFORMANCE; POWER

OF COURT TO MODERATE LIABILITY.—In
determining the extent of liability for losses or damages
resulting from negligence in the fulfillment of

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De Guia, vs. Manila Electric Railroad & Light Co.

a contractual obligation the courts have a discretionary

power to moderate liability according to the
circumstances.

2. CARRIERS; CARRIAGE OF PASSENGERS FOR HIRE;

CONTRACTUAL OBLIGATION OF CARRIER.—The
obligation assumed by a street­railway company, engaged
in the transportation of passengers for hire, towards a
person who embarks for conveyance in one of its coaches,
is of a contractual nature; and the company is bound to
convey its passengers safely and securely with reference to
the degree of care required by law and custom applicable
to the case.

3. ID.; ID.; ID.; LIABILITY OF CARRIER FOR

NEGLIGENCE OF EMPLOYEE.—Upon failure to comply
with this obligation the carrier incurs the liability
commonly incident to the breach of contractual
obligations; and where the delinquency is due to the
negligence if its employee, the carrier cannot avail itself of
the defense that it had exercised due care in the selection
and instruction of such employee and that he was in fact
an experienced and reliable servant.

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4. ID.; ID.; ID.; EXTENT OF CARRIER'S LIABILITY FOR

LOSSES AND DAMAGES; GOOD FAITH.—A street­
railway company which has exercised due care in the
selection and instruction of the motorman upon one of its
cars should be considered a debtor in good faith as regards
liability towards a passenger who is injured by the
negligence of the motorman in directing the car; and the
liability of the carrier to the injured party extends to such
losses and damages only as could be reasonably foreseen
as a probable consequence of the physical injuries inflicted
upon the passenger and which are in fact a necessary
result of those injuries.

5. PHYSICAL INJURIES; DAMAGES; EXPENSES OF

MEDICAL SERVICE.—A person who is entitled to recover
expenses of cure as an item of damage in a civil action for
physical injuries cannot recover doctor's bills for services
gratuitously rendered; and the claim must furthermore be
limited to medical services reasonably suited to the case.
Charges of professional experts retained merely with a
view to promote the success of the action for damages
should not be allowed.

APPEAL from a judgment of the Court of First Instance of

Manila. Del Rosario, J.
The facts are stated in the opinion of the court.
Sumulong & Estrada, Crossfield & O'Brien and
Francisco A. Delgado for plaintiff­appellant.
Lawrence & Ross for defendant­appellant.
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708 PHILIPPINE REPORTS ANNOTATED

De Guia vs. Manila Electric Railroad & Light Co.

STREET, J.:

This is an appeal prosecuted both by the plaintiff and the

defendant from a judgment of the Court of First Instance of
the City of Manila, whereby the plaintiff was awarded the
sum of P6,100, with interest and costs, as damages
incurred by him in consequence of physical injuries
sustained while riding on one of the defendant's car.
The accident which gave rise to the litigation occurred
on September 4, 1915, near the end of the street­car line in
Caloocan, Rizal, a northern suburb of the city of Manila. It
appears that, at about 8 o'clock p. m., of the date
mentioned, the plaintiff Manuel de Guia, a physician
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residing in Caloocan, boarded a car at the end of the line

with the intention of coming to the city. At about 30 meters
from the starting point the car entered a switch, the
plaintiff remaining on the back platform holding the
handle of the right­hand door. Upon coming out of the
switch, the small wheels of the rear truck left the track,
ran for a short distance along the macadam filling, which
was flush with the rails, and struck a concrete post at the
left of the track. The post was shattered; and as the car
stopped the plaintiff was thrown against the door with
some violence, receiving bruises and possibly certain
internal injuries, the extent of which is a subject of dispute.
The trial court found that the motorman of the derailed
car was negligent in having maintained too rapid a speed.
This inference appears to be based chiefly upon the results
of the shock, involving the shattering of the post and the
bending of the kingpost of the car. It is insisted for the
defendant company that the derailment was due to the
presence of a stone, somewhat larger than a goose egg,
which had become accidentally lodged between the rails at
the juncture of the switch and which was unobserved by
the motorman. In this view the derailment of the car is
supposed to be due to casus fortuitos and not chargeable to
the negligence of the motorman.

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De Guia vs. Manila Electric Railroad & Light Co.

Even supposing that the derailment of the car was due to

the accidental presence of such a stone as suggested, we do
not think that the existence of negligence is disproved. The
motorman says that upon approaching the switch he
reduced the electrical energy to the point that the car
barely entered the switch under its own momentum, and
this operation was repeated as he passed out. Upon getting
again on the straight track he put the control successively
at points one, two, three and lastly at point four. At the
moment when the control was placed at point four he
perceived that the rear wheels were derailed and applied
the brake; but at the same instant the car struck the post,
some 40 meters distant from the exit of the switch. One of
the defendant's witnesses stated in court that the rate of a
car propelled by electricity with the control at point "four"
should be about five or 6 miles per hour. There was some
other evidence to the effect that the car was behind
schedule time and that it was being driven, after leaving
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the switch, at a higher rate than would ordinarily be

indicated by the control at point four. This inference is
rendered more tenable by the circumstance that the car
was practically empty. On the whole, we are of the opinion
that the finding of negligence in the operation of the car
must be sustained, as not being clearly contrary to the
evidence; not so much because of excessive speed as
because of the distance which the car was allowed to run
with the front wheels of the rear truck derailed. It seems to
us that an experienced and attentive motorman should
have discovered that something was wrong and would have
stopped before he had driven the car over the entire
distance from the point where the wheels left the track to
the place where the post was struck.
The conclusion being accepted that there was negligence
on the part of the motorman in driving the car, it, results
that the company is liable for the damage resulting to the
plaintiff as a consequence of that negligence. The plaintiff
had boarded the car as a passenger for the city of Manila
and the company undertook to convey him for hire. The

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De Guia, vs. Manila Electric Railroad & Light Co.

relation between the parties was, therefore, of a

contractual nature, and the duty of the carrier is to be
determined with reference to the principles of contract law,
that is, the company was bound to convey and deliver the
plaintiff safely and securely with reference to the degree of
care which, under the circumstances, is required by law
and custom applicable to the case (art. 1258, Civil Code).
Upon failure to comply with that obligation the company
incurred the liability defined in articles 1103­1107 of the
Civil Code. (Cangco vs. Manila Railroad Company, 38 Phil.
Rep., 768; Manila Railroad Company vs. Compañia
Trasatlantica, and Atlantic, Gulf & Pacific Co., 38 Phil.
Rep., 875.)
From the nature of the liability thus incurred, it is clear
that­the defendant company can not avail itself of the last
paragraph of article 1903 of the Civil Code, since that
provision has reference to liability incurred by negligence
in the absence of contractual relation, that is, to the culpa
aquiliana of the civil law. It was therefore irrelevant for
the defendant company to prove, as it did, that the
company had exercised due care in the selection and
instruction of the motorman who was in charge of its car
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and that he was in fact an experienced and reliable

servant.
At this point, however, it should be observed that
although in case like this the defendant must answer for
the consequences of the negligence of its employee, the
court has the power to moderate liability according­ to the
circumstances of the case (art. 1103, Civ. Code).
Furthermore, we think it obvious that an employer who
has in fact displayed due diligence in choosing and
instructing his servants is entitled to be considered a
debtor in good faith, within the meaning of article 1107 of
the same Code. Construing these two provisions together,
and applying them to the facts of this case, it results that
the defendant's liability is limited to such damages as
might, at the time of the accident, have been reasonably
foreseen as a probable consequence of the physical injuries
inflicted upon the plaintiff and which were in fact a
necessary result of those injuries. There is nothing novel in
this proposition, since both the civil and
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De Guia vs. Manila Electric Railroad & Light Co.

the common law are agreed upon the point that the
damages ordinarily recoverable for the breach of a
contractual obligation, against a person who has acted in
good faith, are such as can reasonably be foreseen at the
time the obligation is contracted. In Daywalt vs.
Corporación de PP. Agustinos Recoletos (39 Phil., 587), we
said: "The extent of the liability for the breach of a contract
must be determined in the light of the situation in
existence at the time the contract is made; and the
damages ordinarily recoverable are in all events limited to
such as might be reasonably foreseen in the light of the
facts then known to the contracting parties."
This brings us to consider the amount which may be
awarded to the plaintiff as damages. Upon this point the
trial judge found that, as a result of the physical and
nervous derangement resulting from the accident, Dr. De
Guia was unable properly to attend to his prof essional
labors for three months and suspended his practice for that
period. It was also proved by the testimony of the plaintiff
that his customary income, as a physician, was about P300
per month. The trial judge accordingly allowed P900, as
damages for loss of professional earnings. This allowance is
attacked upon appeal by the defendant as excessive both as
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to the period and rate of allowance. Upon examining the

evidence we fell disinclined to disturb this part of the
judgment, though it must be conceded that the estimate of
the trial judge on this point was liberal enough to the
plaintiff.
Another item allowed by the trial judge consists of
P3,900, which the plaintiff is supposed to have lost by
reason of his inability to accept a position as district health
officer in Occidental Negros.. It appears in this connection
that Mr. Alunan, representative from Occidental Negros,
had asked Dr. Montinola, who supposedly had. the
authority to make the appointment, to nominate the
plaintiff to such position. The job was supposed to be good
for two years, with a salary of ?1,600 per annum, and
possibility of outside practice worth P350. Accepting these
sugestions as true, it is evident that the damages thus
incurred are too specu­
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De Guia vs. Manila Electric Railroad & Light Co.

lative to be the basis of recovery in a civil action. This

element of damages must therefore be eliminated. It goes
without saying that damage of this character could not, at.
the time of the accident, have been foreseen by the
delinquent party as a probable consequence of the injury
inflicted—a circumstance which makes applicable article
1107 of the Civil Code, as already expounded.
The last element of damages to be considered is the item
of the plaintiff's doctor's bills, a subject which we
momentarily pass for discussion further on, since the
controversy on this point can be more readily understood in
connection with the question raised by the plaintiff's
appeal.
The plaintiff alleges in the complaint that the damages
incurred by him as a result of the injuries in question
ascend to the amount of P40,000. Of this amount the sum
of P10,000 is supposed to represent the cost of medical
treatment and other expenses incident to the plaintiff's
cure, while the remainder (P30,000) represents the damage
resulting from the character of his injuries, which are
supposedly such as to incapacitate him for the exercise of
the medical profession in the future. In support of these
claims the plaintiff introduced evidence, consisting of his
own testimony and that of numerous medical experts,
tending to show that as a result of the injuries in question
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he had developed infarct of the liver and traumatic

neurosis, accompanied by nervousness, vertigo, and other
disturbing symptoms of a serious and permanent
character, it being claimed that these manifestations of
disorder rendered him liable to a host of other dangerous
diseases, such as pleuresy, tuberculosis, pneumonia, and
pulmonary gangrene, and that restoration to health could
only be accomplished, if at all, after long years of complete
repose. The trial judge did not take these pretensions very
seriously, and, as already stated, limited the damages to
the three items of professional earnings, expenses of
medical treatment, and the loss of the appointment as
medical inspector in Occidental Negros. As the appeal of
the plaintiff opens the whole case upon the question of
damages, it is desirable to present a somewhat
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De Guia vs. Manila Electric Railroad & Light Co.

fuller statement than that already given with respect to

extent and character of the injuries in question.
The plaintiff testified that, at the time the car struck
against the concrete post, he was standing on the rear
platform, grasping the handle of the right­hand door. The
shock of the impact threw him f orward, and the left t part
of his chest struck against the door causing him to fall. In
falling, the plaintiff says, his head struck one of the seats
and he became unconscious. He was presently taken to his
home which was only a short distance away, where he was
seen at about 10 o'clock p. m., by a physician in the
employment of the defendant company. This physician says
that the plaintiff was then walking about and apparently
suffering somewhat from bruises on his chest. He said
nothing about his head being injured and refused to go to a
hospital. Later, during the same night Dr. Carmelo Basa
was called in to see the plaintiff. This physician says that
he found Doctor De Guia lying in bed and complaining of a
severe pain in the side. During the visit of Doctor Basa the
plaintiff several times spit up blood, a manifestation no
doubt due to the effects of the bruises received in his side.
The next day Doctor De Guia went into Manila to consult
another physician, Doctor Miciano, and during the course
of a few weeks he called into consultation other doctors who
were introduced as witnesses in his behalf at the trial of
this case. According to the testimony of these witnesses, as

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well as that of the plaintiff himself, the symptoms of

physical and nervous derangement in the plaintiff speedily
developed in portentous degree.
Other experts were introduced by the defendant whose
testimony tended to show that the plaintiff's injuries,
considered in their physical effects, were trivial and that
the attendant nervous derangement, with its complicated
train of ailments, was merely simulated.
Upon this question the opposing medical experts
ventilated a considerable mass of professional learning
with reference to the nature and effects of the baffling
disease
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De Guia vs. Manila Electric Railroad & Light Co.

known as traumatic neurosis, or traumatic hysteria—a

topic which has been the occasion of much controversy in
actions of this character in the tribunals of Europe and
America. The subject is one of considerable interest from a
medico­legal point of view, but we deem it unnecessary in
this opinion to enter upon a discussion of its voluminous
literature. It is enough to say that in our opinion the
plaintiff's case f or large damages in respect to his
supposed incapacitation for future professional practice is
not made out. Of course in this jurisdiction damages can
not be assessed in favor of the plaintiff as compensation for
the physical or mental pain which he may have endured
(Marcelo vs. Velasco, 11 Phil. Rep., 287); and the evidence
relating to the injuries, both external and internal, received
by him must be examined chiefly in its bearing upon his
material welfare, are, that is, in its results upon his
earning capacity and the expenses incurred in restoration
to the usual condition of health.
The evidence before us shows that immediately after the
accident in question Doctor De Guia, sensing in the
situation a possibility of profit, devoted himself with great
assiduity to the promotion of this litigation; and with the
aid of his own professional knowledge, supplemented by
suggestions obtained from his professional friends and
associates, he enveloped himself more or less unconsciously
in an atmosphere of delusion which rendered him incapable
of appreciating at their true value the symptoms of
disorder which he developed. The trial court was in our
opinion fully justified in rejecting the exaggerated estimate
of damages thus created.
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We now pass to the consideration of the amount allowed

to the plaintiff by the trial judge as the expenses incurred
for medical service. In this connection Doctor Montes
testified that he was first called to see the plaintiff upon
September 14, 1915, when he found him suffering from
traumatic neurosis. Three months later he was called upon
to treat the same patient for an acute catarrhal condition,
involving disturbance in the pulmonary region. The treat­

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De Guia vs. Manila Electric Railroad & Light Co.

ment for this malady was successful after two months, but
at the end of six months the same trouble recurred and
required f urther treatment. In October of the year 1916, or
more than a year after the accident in question occurred,
Doctor Montes was called in consultation with Doctor
Guerrero to make an examination of the plaintiff. Doctor
Montes says that his charges altogether for services
rendered to the plaintiff amount to P350, of which the sum
of P200 had been paid by the plaintiff upon bills rendered
from time to time. This physician speaks in the most
general terms with respect to the times and extent of the
services rendered; and it is by no means clear that those
services which were rendered many months, or year, after
the accident had in fact any necessary or legitimate
relation to the injuries received by the plaintiff. In view of
the vagueness and uncertainty of the testimony relating to
Doctor Montes's services we are of the opinion that the sum
of P200, or the amount actually paid to him by the plaintiff,
represents the extent of the plaintiff's obligation with
respect to treatment for said injuries.
With regard to the obligation supposedly incurred by the
plaintiff to three other physicians, we are of the opinion
that they are not a proper subject of recovery in this action;
and this for more than one reason. In the first place, it does
not appear that said physicians have in fact made charges
for those services with the intention of imposing obligations
on the plaintiff to pay for them. On the contrary it would
seem that said services were gratuitously rendered out of
courtesy to the plaintiff as a member of the medical
profession. The suggestions made on the stand by these
physicians to the effect that their services were worth the
amounts stated by them are not sufficient to prove that the
plaintiff had incurred the obligation to pay those amounts.
In the second place, we are convinced that in employing so
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many physicians the plaintiff must have had in view the

successful promotion of the issue of this lawsuit rather
than the bona fide purpose of effecting the cure of his
injuries. In order to constitute a proper element of
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De Guia vs. Manila Electric Railroad & Light Co.

recovery in an action of this character, the medical service

for which reimbursement is claimed should not only be
such as to have created a legal obligation upon the plaintiff
but such as was reasonably necessary in view of his actual
condition. It can not be permitted that a litigant should
retain an unusual and unnecessary number of professional
experts with a view to the successful promotion of a lawsuit
and expect to recover against his adversary the entire
expense thus incurred. His claim f or medical services must
be limited to such expenditures as were reasonably suited
to the case.
The second error assigned in the brief of the defendant
company presents a question of practice which, though not
vital to the solution of this case, is of sufficient general
importance to merit notice. It appears that f our of the
physicians examined as witnesses for the plaintiff had
made written statements at various dates certifying the
results of their respective examinations into the condition
of the plaintiff. When these witnesses were examined in
court they identified their respective signatures to these
certificates and the trial judge, over the defendant's
objection, admitted the documents as primary evidence in
the case. This was undoubtedly erroneous. A document of
this character is not primary evidence in any sense, since it
is f undamentally of a hearsay nature; and the only
legitimate use to which one of these certificates could be
put, as evidence for the plaintiff, was to allow the physician
who issued it to refer thereto to refresh his memory upon
details which he might have forgotten. In Zwangizer vs.
Newman (83 N. Y. Supp., 1071) which was also an action to
recover damages for personal injury, it appeared that a
physician, who had been sent by one of the parties to
examine the plaintiff, had made at the time a written
memorandum of the results of the examination; and it was
proposed to introduce this document in evidence at the
trial. It was excluded by the trial judge, and it was held
upon appeal that this was proper. Said the court: "There
was no failure or exhaustion of the
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memory, and no impeachment of the memorandum on

crossexamination; and the document was clearly
incompetent as evidence in chief."
It results from the foregoing that the judgment appealed
from must be modified by reducing the amount of the
recovery to eleven hundred pesos (P1,100), with legal
interest from November 8, 1916. As thus modified the
judgment is affirmed, without any special pronouncement
as to costs of this instance. So ordered.

Arellano, C. J., Torres, Araullo, Malcolm, and

Avanceña, JJ., concur.

Judgment modified.

____________

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